by Paul Alan Levy
Yesterday I commented on the efforts of John W. Dozier, Jr. to use spurious claims of trademark infringement to get a “sucks” site, www.cybertriallawyer-sucks.com, taken down, focusing on the trademark claim itself. That claim will, ultimately, be decided in court. But there is a broader lesson for consumers, because the various ISP’s that hosted Ronald J. Riley’s “sucks” site responded so differently to Dozier’s bullying tactics. Consumers may want to consider these differences in deciding which ISP’s to use for their own web sites.
Not all of the ISP’s backed down willingly – there have been free speech heroes here as well as villains. But Dozier’s threats were disappointingly effective – without his ever having to establish that he has a valid claim.
In at least one case, when the ISP A Small Orange refused to take immediate action because it wanted some proof, Dozier went over the ISP’s head directly to the ISP’s data center, Global Net Access or "GNAX." He made clear that although he was making a trademark claim, his real concern was with the fact that Riley’s “sucks” page had achieved the third position in organic Google search results. Without demanding any proof, or giving Riley a chance to reply, GNAX told A Small Orange that unless it cut off Riley immediately it was going to pull all of A Small Orange’s clients web sites down. It is not clear why GNAX acted so precipitously, but that point A Small Orange took down Riley’s web site.
When Riley moved his site to a new host, pSek LLC, Dozier threatened pSek that it could be liable for “contributory infringement” if it did not take Riley down immediately; he also threatened to go to one of pSek’s biggest customers to complain. pSek tried to remonstrate with Dozier, but he refused to engage in any discussion, but repeated his threats against pSek’s other clients. Recognizing that for a small ISP without any lawyer on staff, it costs money just to talk to an outside counsel, Dozier cynically played on this cost factor by repeatedly warning that pSek must have its lawyer contact Dozier or face the consequences. Threatened with the possibility of action against its other clients (who produce greater revenue than Riley, presumably), pSek chose its other customers over Riley, and told Riley to take his business elsewhere.
And after Riley posted his web site through the ISP Hostgator, presumably after receiving similar threats from Dozier, Hostgator shut down Riley’s web site without any notice. Riley’s web site is back up for now, using a new ISP, Ctyme, that stands on its willingness to resist such bullying.
Will YOUR ISP Stand Up for Your Free Speech Rights?
In the meantime, consumers may well question the responses of some the ISP’s to Dozier’s bullying tactics. One may well understand the reaction of a small business to a threat of litigation – why not just pitch the customer who is causing the trouble, given the attendant expense of defending even a baseless lawsuit? But if ISP’s routinely surrender to such threats, instead of leaving it to the challenger to seek a judicial remedy – and without either conducting their own investigation or even giving the challenged web site operator an opportunity to respond – the result is that unproved claims succeed in taking down speech.
Just as Section 230 of the Communications Decency Act protects ISP’s from being sued over content on web sites that they host exempts ISP’s from liability for decisions they may about whether to censor content that they host. Consequently, a user like Riley can usually not sue an ISP for taking down his site, but must sue the person responsible for the takedown, in this case Dozier. On the other hand, just as “intellectual property claims” are outside the ISP’s immunity from suit by disgruntled targets, the “IP exception” also means that the protection against suits over censorship also excludes takedowns based on intellectual property claims. And, in any event, the existence of this legal immunity does not protect ISP’s who give in too easily to attacks on free speech from the market consequences of being seen as weak-kneed.
Consumers who use the ISP’s that surrendered to Dozier’s bullying – pSek and Hostgator but especially GNAX, which threatened to plug on all of A Small Orange’s customers unless Riley’s site was taken down within 24 hours – have cause to worry about what will happen to their web sites if someone brings a meritless challenge to their own conduct. They should consider contacting those ISP’s and demanding an explanation. And if they are not satisfied with the response, they should consider taking their business elsewhere.
I am writing to ISP's involved, especially GNAX, pSek and Hostgator, and inviting them to respond.
Other Solutions to the Problem
Dozier’s cynical use of spurious trademark claims to get around CDA immunity points up the question whether CDA immunity should extend to trademark claims. ISP’s recognize and appreciate their CDA immunity. In my experience, many ISP's will respond with a takedown when they find the complaint of a speech target compelling. But when the case is close (or when the would-be plaintiff’s case is not particularly persuasive), they are likely to respond to takedown demands with the attitude, “ok, sue the speaker, go to trial and if you win send me the judgment.” But even though they may have a strong argument against liability for contributory trademark infringement where they are merely hosting a web site, the very expense of having to defend the case – or having to consult a lawyer even – often impels smaller ISP’s to drop the controversial client rather than face the threat of litigation. That is why the CDA immunity regime is so important, and the continued abuse of trademark theories to suppress free speech provides a good reason to exclude trademark cases from the CDA’s IP exception.
It has always seemed to me arguable whether the term “intellectual property” extends to trademark infringement claims, for the same reasons that the intellectual property clause of the constitution has been held not to authorize federal legislation protecting trademarks. But that has not been the prevailing interpretation. We’d like to find the opportunity to litigate that issue in an appropriate case, but for now amendment of the CDA seems the route to explore.